Tuesday, March 30, 2010

The Office of Campaign and Political Finance has issued a statement on the Citizens United decision by the Supreme Court and how it relates to our chapter 55 section 8. The Globe has an analysis here. See our original post here. In addition, there were changes to local campaign finance laws that went into effect in January. Chapter 28 of the acts of 2009 amended the campaign finance laws, the open meetings laws and the lobbying restrictions. The Office has an overview of how the law is applied in a variety of elections in their newsletter.And, as always check our pages on Elections and Open Meetings.

Friday, March 26, 2010

Yesterday, in Comm. v. Boe, the Massachusetts Supreme Judicial Court ruled that a judge does not have the authority "to order the Commissioner of Probation (commissioner) to expunge a defendant's record where the criminal complaint was dismissed because its issuance was premised on a mistake." "Massachusetts appellate decisions have construed the unambiguous language of G.L. c. 276, § 100C, as conferring on a judge the authority, in appropriate circumstances, to order sealing, but not expungement, of the probation and court records of dismissed prosecutions." Similarly, in 2002 the court ruled in Comm. v. Gavin G., 437 Mass. 470, that "a Juvenile Court judge lacked the authority to expunge the probation record of a juvenile."

These cases contrast with Comm. v. S.M.F., 40 Mass. App. Ct. 42 (1996), in which expungement was allowed in a case in which the person charged had assumed the identity of a wholly innocent person. "In the unique circumstances of S.M.F., where the deliberate act of prosecution was not against S.M.F., the court concluded that G.L. c. 276, § 100C, was inapplicable, and, therefore, the trial court could invoke its inherent power to expunge the criminal records under the name of S.M.F...Expungement was an appropriate remedy because the facts of the case did not place it within the categories of dispositions contemplated by the sealing statutes--criminal proceedings were never initiated against the "real" S.M.F."

Wednesday, March 24, 2010

In March of 2009, the Land Court held that a foreclosure was invalid because the notice in the newspaper did not list the holder of the mortgage at the time of the notice. The case is U.S. Bank National Association v. Ibanez and the court held that the sale was void as a matter of law. The Boston Globe has a review of the case here.Since Ibanez, mortgage companies have delayed deals, and title insurance has been difficult to obtain. This could impact thousands of cases. The hope is that any changes will not be retroactive, calling into question the ownership of homes sold years ago.

Friday, March 19, 2010

In Melendez-Diaz v. Massachusetts (129 S. Ct. 2527) the Supreme Court found the introduction of state forensic-lab reports is testimonial evidence requiring the appearance at trial of lab technicians.
Some subsequent decisions:

Commonwealth v. Martinez-Guzman, 76 Mass. App. Ct. 167 Defendant argued that his RMV record was submitted and he did not have a chance to cross examine the employee who signed the RMV record. The Appeals Court found RMV records are maintained independently of any prosecutorial purpose and are therefore admissible in evidence as ordinary business records.

Commonwealth v. Madera, 76 Mass. App. Ct. 154 The Appeals Court affirmed the decision. Madera claimed under Melendez-Diaz that his right to confront the drug analyst was violated. The Appeals Court agreed but decided that the evidence was overwhelming against the defendant. Importantly, the prosecution did not make the reports central to its case and Appeals Court noted they made no mention of the certificates in their closing arguments. Therefore the denial under Melendez-Diaz was not strong enough to overturn the decision.

Commonwealth v. Perez, 76 Mass. App. Ct. 439 (2010) Defendant was convicted of drug trafficking. The judgment was reversed following Melendez-Diaz. Drug certificates were introduced, despite defense objection, and the defendant was not able to cross examine the drug analyst.

Commonwealth v. Rivera, 76 Mass. App. Ct. 304 Ballistic certificates were entered into evidence despite objections by defense. The defendant was found guilty. Appeals Court reversed the decision based on the violation of the defendant’s right to confrontation provided by Melendez-Diaz.